Check out our Webinar Replay on Getting Started in Mass Torts Now!
This presentation is one you won’t want to miss if you’ve ever considered getting into Mass Torts.
This presentation, based on over a decade of campaigns that have expended millions of dollars in advertising, is meant for attorneys who have little to no experience with Mass Torts.
Attendees will learn the Mass Torts process, how to vet which one(s) to invest in, costs associated with getting involved, and what pitfalls to look out for.
Presented by Eric Bersano, VP of Business Development at Market My Market and CEO of ClientSure, his years of experience will leave every guest with a firm understanding of the following:
-An Overview of the Entire Process, whether you handle the case or you pass along to another.
-How to Choose a Mass Tort, from emerging cases to existing.
-Costs associated with different approaches
-Risks involved in your Mass Tort campaign and how to mitigate them as much as possible
Watch Our Webinar on Getting Started in Mass Torts
Now on YouTube here:
In addition to the webinar, here is the transcription below (please excuse any typos, word confusion, and/or grammar errors):
Hello, everybody. Welcome to the How To Get Started in Mass Torts webinar. I’m going to give some people a chance to get logged in here. It looks like there are several people trying to log in, so just stay patient for a minute and then we’ll get started in about a minute and a half.
Yeah, several people just joining now. So, be patient for another minute and then we’ll get going. Anybody who is in, you should see a chat box. If you’ve got questions that you’d like to ask, I’ll address all those at the end. This is also meant as an introduction to mass torts, going to be a nice overview, but if there’s anything in this presentation that isn’t delved into deep enough, I would be happy to consider maybe a follow-up to this webinar so that we can jump into something that people are a little bit more interested in to take a deeper dive on.
Okay. And with that, let’s get started. I’ll do a brief introduction of myself. My name is Eric Bersano, I’m the vice president of business development at Market My Market. I’ve been involved with legal marketing since 2006 and involved with mass torts since 2010. The idea of this webinar is really to just give you an idea of how to get started with mass torts. If it’s something that you’ve heard about, but don’t have a lot of intimate knowledge of, this will give you a really good overview and at least give you an idea of where to go to get more details on a mass tort that you might be interested in joining. One thing that you’ll see that I refer to over and over is, talk to attorneys. At the end of the day, all of the plaintiff’s attorneys are on one side and the defense is on the other. So, the more knowledgeable you are about the mass tort that you want to get involved with, the better it’s going to be overall for the litigation for the plaintiffs.
With that, let’s get started. First thing I’m going to talk about is just the process in general, how a mass tort or MDL comes to be. To kick it off, really what happens is you get several, at least two lawsuits that are filed in two different states. Those lawsuits have to have very similar fact pattern causation, but a varying injury. So, class action would be something where everything is exactly the same, we’ll get a little bit more detailed into how this process happens. But, the JPML is the initial kickoff, the JPL is actually going to decide whether it moves to MDL. And the reason being, they don’t want to have cases in a lot of different states, wasting resources on both the plaintiff and defense side, when everything can be consolidated into an MDL, which would be the next phase, if that panel decides to move it to MDL.
Daubert is another really critical point of the process. I’ve got a couple slides on that. That’s really going to talk about expert witness testimony and whether it can be brought in, or if it’s challenged and those expert witnesses testimony or opinions, aren’t going to be brought in to the bellwether trials. Bellwether trials, this is kind of an exciting point for any MDL. These are actual jury trials that are going to help to determine the settlement values. It’s when the negotiations are really going to start and then it’ll finalize with settlement. And there are different tiers to settlements, so not everybody’s going to receive the exact same settlement. It’s really going to be determined by your client and what their injuries were along with some other facts that you’re going to have to collect along the way.
So with that, let’s jump into the next slide. So the JPML, again, a formality. This is something that you may get wind of early on because there is a recall on a drug and that’s kind of the first indicator that this really could turn into an MDL. So this JPML, this panel of federal judges is going to look at everything and make sure that moving it into to an MDL is the best for everybody involved. Meaning everybody gets to use the same information, depositions, all the facts are all consolidated so that the potential or the clients of these cases are going to get more of a speedy trial. And then everything on the plaintiff side and the defense side can be consolidated into one. You can imagine, in some of these MDLs, there are thousands and thousands of cases, to do these cases in multiple courts across multiple states would be a big waste of resources, so the JPML decides that.
Next we’re going to move into Daubert. This is very critical and some cases are won or lost, or settlement values are increased or completely dissipated based on these Daubert proceedings. What you’re really interested in here is, is the expert witness, let’s just say for Talc, and you have an oncologist, they have to convince the judge that their expert testimony is they’re using a methodology that can be reproduced, that other colleagues of similar stature would come to the same findings. And there is going to be expert witnesses on both sides. The defense is going to have their expert witnesses that are going to say the exact opposite of the plaintiff. Now, both expert witnesses could be admitted. Both could be rejected or one or the other, but this part, the science piece is going to be critical. One of the thing that’s going to be a differentiator here than in some trials is how complex the science gets.
A lot of times we’re talking about a medical device that gets implanted and how that interacts with the body. We’re talking about a drug that may interact to cause cancer. So, this can get really into the width with the science. So, the expert witnesses that go through this procedure are going to be critical. I’m not going to read this slide, this is just something, you’ll have access to this presentation later. This is just the factors that go into it. Really they’re looking for a scientific method that the opinion of this expert witness really goes through these factors. And kind of people will hold their breath during this part of the trial because, whether or not they pass, is whether or not how strong the case is going to be.
So, bellwether trials, here’s some really important things for you to know if you have little to no experience with these mass torts. These cases are picked by the judge. The plaintiffs are going to put forward some cases that they suggest for bellwether, the defense is going to put together some cases that they suggest for bellwether, but the judge is going to pick which cases are going to go to a trial. And these are going to be trials with juries, where all the evidence is produced all the way through to a verdict. The important piece to remember is if you submit a case, let’s just say you sign up a client and the facts or the evidence or the injuries are insignificant compared to what most of the pool is and your case gets picked, it could really affect the settlement value of everybody’s case.
Signing up somebody is one thing, but placing it into the MDL is something you should probably make sure that you vet with other lawyers who are involved in this case, just to make sure it’s something that if it does get picked, it’s going to be a valuable case for the plaintiff’s side. The juries are going to go through this entire process and at the end of this process, they’re going to give a verdict. I’ll use Talc, just because that made a bunch of headlines with some very significant verdicts, you had 70 million, a hundred million plus, that is going to start the negotiation process now. So now there’s kind of been a bar that’s been set. When that bar has been set, you’re going to start to hear some settlement values talking about what these injuries are going to pay out as.
Another key thing, a reason to get involved but stay involved in a mass tort, is that’s when the goalpost can start to move. This is a part where the negotiations happen, where the defendant might say, “Okay, we will accept these types of cancers in the settlement, but not these. You were collecting people who were injured in 2000, we’re going to move that to 2004.” Following up on these cases and making sure that anybody you have that gets kicked out of that criteria, now you have to do some reassessing of the value of your docket. Also, if you have any continued marketing going on, you’re going to have to change the way you market for these cases, so that you get tighter and tighter on your window of these cases that you’re actually going to accept.
Picking a mass tort, which one are you going to invest in? I’ve got a couple of more detailed sides, but I really want to go over kind of the thought process that you should have. Number one, understand all of your costs. You don’t want to get caught 18 months into this and understand that you now have another large check to write for something that you weren’t prepared for. So again, talk to attorneys, talk to leadership who was involved in the steering committee, talk to people who have personally invested their marketing dollars into one of these cases to find out what are all the costs going to be. Understand how involved you want to get with the case, I use an analogy of, an MDL is kind of like a train with several different stops. And I’ll explain some of the different stops that you can get off.
You can be very, very limited and just invest in the marketing side, or you can be involved all the way through to a settlement. Finding a partner, there are some advantages and disadvantages to this. Again, I’ll dive a little bit deeper into this later in the presentation, but finding an experienced firm to partner with has a lot of advantages. Some of that means getting paid sooner. Obviously, now you’re talking about a fee split, but you’ll have to make a decision on that at some point. Better to kind of know what you’re going to do upfront. Research, treat this as if, if you’re a personal injury attorney, which a lot of people who jump into mass torts are, treat this like a single event.
The causation, do you see the causation and the link to the injury. The viability of that case, the difference between a 3M case with hearing loss and a Talc case where you might have a cancer and a hysterectomy, that should weigh into whether you want to jump into the case and it should be a personal decision for you, how strong you think that case is. The number of potential plaintiffs. Was this drug prescribed to millions of people with a 2% rate of injury, or was it a medical device that was implanted into thousands of people with a 0.1% injury? That’s going to play a big role when you’re talking about how to gather these cases, what type of advertising you do and the channels. Diversify, I’m not saying that you need to diversify meaning go after several different mass torts, but I wouldn’t put all eggs into one basket if you’re new to this.
And what I mean by that is you may start off with a mass tort that looks like it’s just humming along the MDL process and then all of a sudden gets sidetracked. And now, instead of the settlement being six months to a year away, it looks like it’s going to be pushed back for years. If you’ve got all your eggs in that basket and another mass tort comes along that looks like the settlement is right around the corner, you may have been invested in one and lose the ability to do something else. Exit strategy. That’s just, when it comes to settlement time, I would really know what you’re going to do at the beginning. Are you going to partner with somebody? Are you going to take your cases and sell them? Are you going to package your cases and refer them out for percentage? I’d have that plan really well thought out so you kind of understand the entire process and how it’s going to finalize for you and your firm.
All of the costs, some of these are going to be very obvious, but some of them could surprise a law firm that hasn’t done this before. Obviously advertising, there’s lots of different ways to get these cases. I have a slide that goes through some of the different options that you have. Intake services is really big. There are very few law firms in the country that can handle their own intake without outsourcing it. And when it comes to mass torts, you’re talking about investing large budgets, receiving lots of phone calls or chats or intake forms and you don’t want to lose those clients. At some points of an MDL, the cases could be very low costs or you could be spending thousands of dollars per case to sign up. You can’t risk losing somebody because they got put on hold or someone didn’t respond to their email in time.
These intake services and retainer services a lot of times go hand in hand. Have somebody who can answer the phones, who is genuine, who can show empathy, who can also get somebody to sign your retainer and HIPAA forms. A lot of services, the advertising service might be separate from who you’re using from your retainer services, but that’s an outsourcing decision that you can make, and you can test different people out for that. But those are costs that could be a cost per signed case, could be cost per minutes on the phone. But really kind of understand that because it can get out of control fast, if any part of that process breaks down. Document retrieval is another one, so building up your personal client’s case, that’s going to be submitted to the MDL.
There’s document retrieval, getting records of their treatment, getting records of their diagnosis, getting records of the hospital, the more information that you’re going to provide, the more detailed it is, the higher up on those payment tiers you may be able to move. This is something again, talking about those train stops. You might just advertise, sign the clients that qualify and want to pass those on to a firm, but you could also lose control of how well those cases are handled. You might have 50 cases, but refer them to a law firm that has 5,000 cases. Are they going to do the same due diligence on getting those medical records that you would? You’re the one that’s going to be tied to those cases. It’s something to think about as you’re moving through this MDL process.
Filing fees is interesting. I’ve seen some of these cases where you could file your entire docket of a hundred for one filing fee or others where it might be a four or $500 per case filing fee. Now, if you have a hundred cases and now you’re on the hook for a 40 or $50,000 filing fee, something that if you weren’t planning on paying, it could be a bit of a surprise. Your internal resources, how much time personally are you going to have to spend or maybe your paralegals. Again, I wouldn’t suggest having your law firm answer phones for these, but once you sign somebody up, they might be following up with you for communication. There might be some plaintiff fact sheets that need to be filled out there. This can be very time intensive and the documentation for this can be very intense. Kind of understand that process and can you afford the internal resources to keep up with the number of cases you bring in?
Opportunity costs, this could be huge. Let’s just say that your firm invested a million dollars in a mass tort. If that money is tied up for two, three, four years and you’re a single event personal injury firm, are those dollars that would have been better to invest into a case, your expert witnesses, other marketing. Again, I keep repeating myself here, but if you’re new to this, I would step in and dip your toe in. You won’t learn anything as fast as investing your own dollars, but I wouldn’t over commit to anything. There’s going to be people out there that will tell you that our lawyers that are involved, these are guarantees, the settlement values are going to be huge. You can talk to somebody at a conference the next day that tells you that they wouldn’t invest their own money into it.
Do your own due diligence. This is your budget that you’re working with. These are going to be your clients that you’re telling that you’re going to get good results for. Make sure you understand as much about it as possible. Financing, I throw in here because there’s a lot of companies out there that will help finance, they’ll finance your marketing. There’s companies that may even purchase your entire docket. But if you take out a loan and you’ve got a high interest rate and these cases don’t settle in 18 months like you were told, but three years, now you’re starting to eat into that investment of yours. So again, know what you’re biting off, I would plan for worst case.
I hear a lot of people who are thinking about getting into this and everything’s going to be a 10 or 20X, that’s possible, it’s not always the case. So you’ve got to kind of plan for what could potentially happen. Timing, this is an interesting one. And again, it really depends on your tolerance for risk. Pre-MDL, pre-MDL would be let’s just say that a product got removed because it was linked to cancer. That product gets removed from the shelf, hasn’t gone to JPML, hasn’t gone to MDL yet, but that’s a very good sign that it’s moving in that direction. This is what we would call a blue ocean in marketing. Meaning, if there’s a lot of potential clients out there to pick up some low cost cases to be signed at that time, it would be a very opportunistic time to do that.
Now, you could spend $50 to $100,000 dollars of marketing, get some very, very low cost, but it may never go anywhere. Still, it’s an opportunity, if you’ve got a little bit of experience in this, you might be able to take a risk on that. Once the MDL is established, that is a very good sign that these cases are going to settle at some point. Now, I can’t think of an instance where something goes to MDL and doesn’t settle. It doesn’t mean it’s going to settle for what you think it is, but that’s a really good time and that’s when people are going to start jumping in. Still, depending on the MDL and the numerosity of the number of people who were affected, you can typically pick up some cases at a very low cost.
As that MDL process moves along and you start getting through Daubert and let’s just say bellwether trials, you may get a little bit more bullish or bearish on whether you want to invest more on this. Late into the litigation. Some people see as a very positive, but there’s also a negative side to this. Late into the litigation, let’s just say there’s been great bellwether trials, the settlement values are huge, you want to jump in because you know what’s guaranteed. Two things can happen. One thing to look out for is skyrocketing costs of advertising. Just because you’re not going to be the only person that sees some of these big settlement values, a lot of big companies are going to be dumping a lot of advertising dollars, which is going to shoot the cost per case up. You can see fluctuations on a weekly or daily basis, depending on who’s jumping in or out.
The other thing that can happen is, you move from this blue ocean to red ocean. Meaning a lot of the people who are going to be calling at that time are people who were rejected by other law firms. And they realize if they say cancer A, they get rejected but if they say cancer B, they get signed up. So in this late in the litigation, the vetting process of who you’re signing up and that might be something you do or something you discuss with your intake team that you hire, to really vet these cases out before you sign them up. Your probability of getting a large settlement might increase later in the game, but the cost can go up and the risk of signing somebody who might not qualify go up. Advertising channels, these are going to seem obvious, but I’m going to try to share a couple of things here that you might not have thought of.
I would be very agnostic on who you use. I would talk to people that you trust, other attorneys, who they’ve used, who they like, but each marketing channel could be better or worse, depending on how early in the litigation it is. It could be change just based on who the target is like JUUL, the vape. Obviously social media, Instagram is good for that. If you’re talking about a drug that affects older people, you might be looking at cable for that. And a lot of these prices can change. I would pick a couple of different advertising channels. Most people are going to be able to give you at least a cost per lead. In some cases, they’ll be able to give you a cost per signed case. And, if you’re getting that level of information, you can test different people. You might get that cost per signed case, but is the quality there. There’s a term called breakage.
So, let’s say you signed up a hundred clients, of those 100 clients that signed up and passed your criteria, how many of them will actually be there at the end for settlement? Were these people who changed their own facts? Was there information that wasn’t collected that should have been upfront? The other thing that happens is early on in these cases, awareness mediums are really good. That would be TV and Facebook. So, an awareness media means I have some type of cancer, but I haven’t connected it to the link of the drug that I took. TV is really good at bringing out that awareness. But once there’s a lot of TV and once there’s a lot of social media out there, people are going to go and do their own research. That’s when PPC or a good search engine marketing campaign can pay off. People might not be prone to calling an 800 number from a 32nd TV ad that they saw, but they’re going to go online, do some research and they may find your pay-per-click ad or they may find a landing page that you’ve optimized.
Another thing, if you’re even considering jumping into a mass tort, get a page up on your website. Make sure it’s a nice, healthy, custom written page of content, 500 to a thousand words. You might be able to pick off some very, very low cost cases locally, doesn’t cost you more than whatever it is to write that. Pay per lead, those are another type. Obviously you’re just paying for each lead that comes in, but then there’s also pay per signed case. And typically these need to be quoted to you in real time, because there is such a fluctuation with these types of cases. What will happen is you’ll say, I want Talc cases, the company will come back to you, take your criteria and tell you for every Talc case it’s going to cost you X dollars, how many do you want? So, very low risk way to go about you. You get to define that criteria, they define the pricing, if you guys agree, you buy as many of those cases as you want.
Levels of involvement, here’s the train stop analogy I was talking about. At a very minimum, you’re going to need to advertise, qualify and sign up these cases. You can do one of several things at that point. You could sell those. Let’s just say you got a hundred cases and you want to just recover your money right away, you could sell those cases for a set cost to a firm. What most attorneys are going to do because you’re attorneys and you can fee split, you would pass those cases onto somebody else and then you would take a percentage of that fee. Again, I wouldn’t direct you to any one firm or not, but talk to different firms. Find out what the communication process is going to be like. What’s your fee split going to be like? How much involvement are you going to have? Do you want to involvement or do you want to be a hands-free of it once you pass those cases on?
Working up the cases, collecting medical records, I strongly suggest this. You’ve already decided to invest your money into this. Again, if you pass these to a firm who has thousands and thousands of these cases, are they going to do as good of a job as you are on getting these medical records, affidavits, anything that can strengthen this case. Because when it comes to settlement time, that’s the information that’s going to be used to place an exact value on those cases. Maybe you want to file the cases on your own, you don’t want a fee split at all. The advantage obviously is that you would get that entire fee. But the way that a lot of these cases get paid out during settlement is the leadership, the law firms with the larger dockets are going to get paid first.
And sometimes it’s not months difference, it could be years difference to when you get paid out. The time value of your money, it’s a learning process. You can learn from the law firm that you’re partnered with. You may get paid sooner, you just won’t make as high of a fee. These are all things to consider when you’re deciding to jump into this. I put client communication on here because it really is important. You need to keep up with, if you are tied to these cases, when the deadlines are, so you can keep your clients informed. At a certain part in this MDL, the judge may request X from all of the people who are submitted. If your client doesn’t get that in in time, they could be dropped out and not receive a settlement. How much communication are you going to have back and forth with your partner law firm? I would really define that ahead of time so that you can stay as involved as possible and have as much control over your docket as you can.
In summary, I think we’re right around… Yeah, I was trying to keep this to 30 minutes. In summary, this is a great opportunity for a lawyer. There is a very significant barrier to entry to get into mass torts which is you have to have a law degree. Because it’s a great opportunity, does not mean that it is a slam dunk. I do talk to a lot of attorneys who aren’t well versed in mass torts, and they’ve heard these great stories of people who got involved, invested X amount of dollars and turned in to 20 or 30X. That can happen, it doesn’t always happen. Protect yourself, your investment, your firm, look at all the costs involved, the opportunity of costs of chasing a mass tort as opposed to investing in your typical practice areas, know the risks. I’ve tried to outline as many of those risks as possible as I could here, but this is just an overview. And I’m really happy to answer more questions about this, or do a follow-up webinar that dives deeper into something.
And again, I’m just going to close out with talk to an attorney. I, myself, I’m not an attorney. I’ve got a lot of experience in this, but talk to somebody who’s invested their own money into this, talk to conservative attorneys, we need someone who you know really, really vets a case. Talk to more aggressive attorneys, talk to leadership, find out what they like about the case, ask them what they see the pitfalls as being. And if you’ve got specific questions, I’m going to go through and see if we’ve got some questions here in the chat, you can email me, firstname.lastname@example.org. We’ll be sending some follow-ups to anybody who joined and happy to answer questions there. I don’t see any questions here. If anybody has a question, throw it into the chat now. Otherwise, what I’ll do is I’ll close out. And like I said, we’d really love to hear feedback on information that might’ve been glossed over or pieces of this that could use some more attention. Thanks everybody for your time. Have a great week. And I appreciate you joining me.